Kebab sales bypassing the tax office – tax evasion in kebab restaurants

As a kebab snack bar operator, you attract a large number of satisfied customers to your snack bar every day. You keep your accounts properly and fulfil your tax obligations. But one day, the tax office turns up at your door accusing you of tax evasion. They say you have not recorded your sales correctly. Shocked and unsettled, you ask yourself – what can I do? The following article will provide you with all the relevant information relating to criminal law and tax law.

Tax evasion is an offence that can be punished with heavy fines or even imprisonment. The first thing you should therefore do is contact a lawyer or specialist lawyer for criminal law and tax law.

You need experienced legal advice to represent your rights and protect you from unjustified (or justified) accusations. A criminal and tax lawyer can help you examine the evidence, develop a defence strategy and negotiate with the authorities.

A common cause of suspected tax evasion in kebab shops is the cash register system. Kebab shops often use so-called open shop tills – also known as drawer tills. These are often simple cash registers or drawers that are connected to scales or a calculator. They are mainly used in small shops or snack bars that have many cash transactions and a high customer frequency – such as kebab shops.

“A summary, retrograde calculation of the daily takings and manual individual records without the use of technical aids are deemed to be an open shop cash register.” (BMF letter dated 19/06/2018)

In contrast to electronic cash register systems, open shop cash registers are operated purely manually and therefore do not record any data automatically. This means that they do not record the details of each transaction, such as the time, amount, item or payment method.

However, open shop cash registers must also comply with the principle of proper accounting (§ 158 AO). To this end, every business transaction must be recorded directly and individually. Income and expenditure must be documented in full and in as much detail as possible in daily reports and a cash book (see AEAO on Section 146, No. 2.1.2 and 2.1.3.). However, industry-specific particularities and aspects of reasonableness must also be taken into account (BMF letter dated 19 June 2018). The respective records must enable an expert third party to carry out a comprehensive examination of their basis, content, creation and processing as well as their relevance for the business within a reasonable period of time (BMF letter of 19 June 2018).

The problem with open shop cash registers is that they do not meet the high requirements of the tax office. The tax office requires all business transactions to be individually recorded and verifiable. This is to ensure that sales are recorded and taxed correctly. If a business uses an open shop cash register, the tax office can assume that sales are not being reported correctly or are being manipulated.

In addition, some businesses also sell and use manipulated electronic cash register systems (cash registers) that have additional software designed to enable tax evasion in their own catering business. The manipulation software can be used, for example, to subsequently delete bookings so that they are not transmitted to the tax office, or manipulated receipts can be used to make corrections in the accounting system, which also lead to a subsequent change in the turnover achieved.

In most cases, manipulation is child’s play: for example, a quick turn of the cash register key is all that is needed to ensure that the sales entered afterwards are not saved. Other methods change the number and/or amount of all sales made and enable cancellation sales or the reduction of daily sales with simultaneous adjustment of individual sales (so-called zapper programmes). A popular function is also a “training waiter”, which already exists as a function in the cash register during sales. Everything that is booked to this fictitious waiter is not included in the daily accounting and thus leads to the corresponding sales not being recorded.

In cases of open shop tills and manipulated till systems, the tax office can make an estimate of the turnover (§ 162 AO), which is often too high and leads to high additional tax payments.

The tax office also has the option of using coercive measures in accordance with § 328 AO or prosecuting the taxpayer in accordance with § 379 Para. 1 S. 1 No. 1 and No. 3 AO.

In addition, the violation of accounting obligations is punishable under Section 283 StGB and Section 283b StGB.

If you are a kebab snack bar operator using an open cash register or are accused by the tax office of using a manipulated cash register system and not reporting sales correctly, you need a competent and experienced criminal law and tax law lawyer at your side.

Our law firm Mügge, Dr. Pitschel & Partner | MPP Rechtsanwälte is highly specialised in tax law and criminal law and has extensive expertise in the catering industry.

We have been successfully representing owners of kebab shops and other snack bars in the Göttingen area and cities such as Kassel, Hanover, Hildesheim and Braunschweig for many years. Due to our specialisation, we are also active throughout Germany and can represent you in cities such as Berlin, Hamburg, Munich, Frankfurt, Cologne, Stuttgart, Dortmund, Leipzig, Dresden and Düsseldorf.

Please do not hesitate to contact us. The law firm Mügge, Dr Pitschel & Partner | MPP Rechtsanwälte is your reliable and professional partner in all tax and criminal law matters.